Labor & Employment Law I SEPTEMBER 3, 2014

Drug Testing Retaliatory Discharge Claim Fails on Issues of Causation

Continental Tire Americas, LLC (“CTA”) builds tires in Mt. Vernon, Illinois. The Mt. Vernon plant has a health services department that provides medical treatment to sick or injured employees. In April 2010, Jeff Phillips visited the health services department to report that his fingers went numb at work and to start a workers’ compensation claim. CTA required drug testing in certain situations: 1) Pre-employment testing; 2) Random testing for initial 12 months of employment; 3) For-cause testing; 4) OSHA recordable accident; 5) Transportable injury; 6) Serious equipment/property personal damage incident; and 7) Initiation of workers’ compensation claim.

Under the policy, an employee who initiated a workers’ compensation claim had to submit to drug testing or be immediately suspended pending termination, whether or not he received treatment or services at the health services department.

Phillips refused to take the drug test because he didn’t think that it should be a consequence of filing a workers’ compensation claim. He sued for retaliatory discharge.

When asked at his deposition why CTA terminated him, Phillips stated, “Because I didn’t submit to a drug test.”

When asked if he believed that CTA fired him because he filed a workers’ compensation claim, he answered, “They fired me because I didn’t submit to a drug test.” Phillips had no evidence that there was a different reason.

On appeal the court observed that causation requires more than a discharge in connection with filing a claim, and the “ultimate issue” regarding causation is the employer’s motive in discharging the employee.

The employee must affirmatively show that the discharge was primarily in retaliation for his exercise of a protected right.

The undisputed facts established that CTA terminated Phillips because he refused to take a drug test upon initiation of a workers’ compensation claim, as required by CTA policy.

CTA consistently applied its drug testing policy and discharged other employees who refused to submit to the drug test pursuant to the policy. Phillips could not establish that his discharge was motivated by his pursuit of a workers’ compensation claim and he therefore could not prevail on his retaliatory discharge claim.

In fact, other CTA employees had initiated workers’ compensation claims and were not discharged. Indeed, Phillips had filed a workers’ compensation claim in the past and was not fired. In addition, Phillips did initiate a workers’ compensation claim, and he agreed that if he had taken the drug test, he would still be employed.

Phillips relied on Clark v. Owens-Brockway Glass Container, Inc., 697 N.E.2d 743 (Ill. App. Ct. 1998), which stated: “An employer may discharge an injured employee who has filed a workers’ compensation claim as long as the reason for the discharge is wholly unrelated to the employee’s claim for benefits under the Workers’ Compensation Act.”

“But-for” causation, however, is not sufficient to establish retaliatory discharge. Starting a workers’ compensation claim was a necessary condition, but it was not a sufficient condition for Phillip’s termination. Clark did not help him for another reason; the employer in that case discharged the employee because it thought her claim for benefits was exaggerated and admitted that the discharge was connected to the workers’ compensation claim. There was no such evidence in Phillips’ case.

Although Phillips argued that the drug testing policy discouraged employees from filing workers’ compensation claims, he could not identify anyone who had been discouraged from filing a claim because of the policy.

Drug testing in employment is not against Illinois public policy. The recently enacted Illinois Compassionate Use of Medical Cannabis Pilot Program Act provides that “[n]othing in this Act shall prohibit an employer from enforcing a policy concerning drug testing ... provided the policy is applied in a nondiscriminatory manner.”

The Illinois Human Rights Act also provides that “[i]t shall not be a violation of this Act for an employer to adopt or administer reasonable policies ..., including ... drug testing,

The CTA policy did not single out workers’ compensation claimants for testing. Instead, CTA sought evidence to use in the workers’ compensation proceeding. This was a valid reason for differential treatment.

Phillips v. Continental Tire The Americas, LLC, 743 F. 3d 475 (7th Cir. 2014).